RECORD OF PROCEEDINGS
PHYSICAL DISABILITY BOARD OF REVIEW

NAME:  XXXXXXXXXXXXXXXXXXXXX 	CASE:  PD-2015-00907
BRANCH OF SERVICE:  Army	SEPARATION DATE:  20050911

SUMMARY OF CASE:  Data extracted from the available evidence of record reflects that this covered individual (CI) was an active duty E5, Health Care Specialist, medically separated for “major depressive disorder (MDD)” with a disability rating of 10%.

CI CONTENTION:  Condition continues to affect her life.  The complete submission is at Exhibit A.

SCOPE OF REVIEW:  The Board’s scope of review is defined in DoDI 6040.44.  It is limited to those conditions determined by the Physical Evaluation Board (PEB) to be unfitting for continued military service and when specifically requested by the CI, those conditions identified by the PEB, but determined to be not unfitting.  Any conditions outside the Board’s defined scope of review and any contention not requested in this application may remain eligible for future consideration by the Board for Correction of Military Records.  Furthermore, the Board’s authority is limited to assessing the fairness and accuracy of PEB rating determinations and recommending corrections, where appropriate.  The Board’s assessment of the PEB rating determinations is based on review of medical records and all available evidence for application of the Veterans Affairs Schedule for Rating Disabilities (VASRD) standards to the unfitting medical condition at the time of separation.  The Board has neither the role nor the authority to compensate for post-separation progression or complications of service-connected conditions.  That role and authority is granted by Congress to the Department of Veterans Affairs, operating under a different set of laws.  The Board gives consideration to VA evidence, particularly within 12 months of separation, but only to the extent that it reasonably reflects the severity of the disability at the time of separation.

RATING COMPARISON:

SERVICE PEB - 20050713	VARD - 20061124	
Condition	Code	Rating	Condition	Code	Rating	Exam	
MDD, Requiring Psycho-Tropic Medication and Outpatient Treatment…	9434	10%	MDD	9434	30%	20060622	
COMBINED RATING:  10%	COMBINED RATING OF ALL VA CONDITIONS:  30%	

ANALYSIS SUMMARY:

MDD. According to the service treatment record (STR) and the Medical Evaluation Board (MEB) narrative summary (NARSUM), the onset of the CI’s mental health condition was uncertain.  The CI was evaluated for increasing symptoms of depression while deployed to Iraq in 2004 after she had stopped taking her medications to treat depression.  She was restarted on Prozac and Ambien by a psychiatrist.  The CI related a sexual assault in October 2004, but was amnestic for the incident (the psychiatrist indicated literature supported amnesia with Ambien).  The CI had increased depressive symptoms and was hospitalized and medically evacuated from theater for a suicide attempt in November 2004.  

The 24 June 2005 MEB NARSUM examination, 3 months prior to separation, noted complaints of depression manifested by poor sleep, feelings of guilt, restricted affect, poor memory, absent libido, diminished appetite with a 10-pound weight loss, low energy, anxiety, and intermittent suicidal ideation.  The psychiatrist (who had also treated the CI in Iraq) stated that she had responded poorly to treatment.  On mental status examination (MSE) the CI had “a rather restricted affect.”  Her mini-MSE was within normal limits.  She denied auditory/visual hallucinations, and was not currently suicidal/homicidal.  There was no evidence of psychosis.  The diagnosis was MDD and the psychiatrist indicated that impairment for social/industrial adaptability was definite (impairment for military duty was marked).

The 5 July 2007 commander’s statement noted the CI was not performing her primary medical specialty duties and was performing only administrative duties.  Restrictions included not fit for deployment, no weapons, and no overnight duties.

At the 22 June 2006 VA Compensation and Pension (C&P) evaluation, 9 months after separation, the CI reported depression, insomnia, relationship problems, anger and irritability.  The CI was considered a reliable historian.  The CI related a similar history of depression, sexual assault and suicide attempt with hospitalization as related in the NARSUM.  The CI was not taking any medications and she was “not working for 9 months because she is mentally incapable of working.”  On MSE her affect and mood were abnormal with findings of moderate irritability and anger.  There were signs of suspiciousness.  There was no suicidal ideation, delusions, hallucinations or other symptoms suggestive of psychosis, speech disturbance, objective cognitive impairment, or other abnormality.  The diagnosis was MDD recurrent mild, and the Global Assessment of Functioning was 68 (in the mild symptom range).  The psychiatrist noted the CI was “intermittently … unable to perform activities of daily living (but she can provide self-care) … occasionally may continue to experience some difficulties in performing her daily chores.  She is able to establish and maintain effective work/school and social relationships.”

The Board directed attention to its rating recommendation based on the above evidence.  The PEB rated the MDD condition 10%, coded 9434 (MDD), citing the CI’s impairment for social and industrial adaptability was more accurately described as mild, not definite IAW AR 635-40.  The VA rated the MDD 30% also coded 9434, based on the C&P examination 9 months after separation, citing intermittent problems performing activities of daily living.

Although the record indicated that the CI had treatment for depressive symptoms prior to her sexual assault, there was no diagnosis of MDD prior to that highly stressful event.  The Board agreed that the stipulations of §4.129 were met in this case and therefore recommended a minimum 50% rating for a retroactive 6‐month period on the Temporary Disability Retired List (TDRL).  The Board turned to its rating recommendation at the time of placement on the TDRL.  The MEB psychiatrist’s assessment reflecting persisting moderate symptoms with a poor response to treatment, and the commander’s statement and profile indicating 8-hour workdays with administrative tasks, would rate no higher than 50%.  All Board members agreed that the §4.130 criteria for a rating higher than 50% at the time of placement on TDRL were not met; and, therefore the minimum 50% TDRL rating prescribed by §4.129 is applicable.

The Board then turned to its permanent rating recommendation at the time of removal from the TDRL.  For purposes of the permanent rating recommendation it was adjudged that the VA examination 9 months post-separation carried the highest probative value.  It was the most proximate to the 6-month rating benchmark and it most fully reflected the stress of transition to civilian life, which is a core intent of §4.129 and thus intrinsic to the recommendation.  The MEB evaluation retained lesser probative value, since it was pre-separation.

The Board considered whether the evidence at the 6-month rating timeframe supported a 30% or 10% rating, as no rating higher than 30% was supported.  The Board considered that the post-separation evidence of unemployment was attributed to the mental health condition:  the CI had poor motivation; isolation; moderate irritability, anger and suspiciousness during MSE; and to the VA psychiatrist’s assessment of intermittent inability to perform activities of daily living, although with a mild-range GAF, and ability to maintain effective relationships.  Board consensus was that the CI’s condition at the end of the retroactive TDRL period more nearly supported the higher 30% disability rating for occupational and social impairment with occasional decrease in work efficiency and intermittent periods of inability to perform occupational tasks (although generally functioning satisfactorily).

After due deliberation, considering the totality of the evidence and mindful of VASRD §4.3 (reasonable doubt), the Board majority recommends a retroactive 6-month period of TDRL with a rating of 50% (in accordance with §4.129), and a permanent rating of 30% for the MDD condition IAW §4.130.

BOARD FINDINGS:  In the matter of the MDD condition, the Board unanimously recommends an initial TDRL rating of 50% in retroactive compliance with VASRD §4.129, and by a majority recommends a 30% permanent rating at 6 months IAW VASRD §4.130.  The single voter for dissent submitted the appended minority opinion.  There were no other conditions within the Board’s scope of review for consideration.  The Board recommends that the CI’s prior determination be modified as follows; and, that the discharge with severance pay be re-characterized to reflect permanent disability retirement following a retroactive period of TDRL:

CONDITION	VASRD CODE	RATING	
		TDRL	PERMANENT	
MDD	9434	50%	30%	

The following documentary evidence was considered:

Exhibit A.  DD Form 294, dated 20150605, w/atchs
Exhibit B.  Service Treatment Record
Exhibit C.  Department of Veterans Affairs Treatment Record

MINORITY OPINION:  The minority member agrees the evidence supports that the stipulations of §4.129 were met in this case and recommends a 50% rating for a retroactive 6‐month period on the Temporary Disability Retired List (TDRL).  The minority member also agrees that for purposes of the permanent rating recommendation, the VA examination 9 months post-separation carried high probative value for a permanent rating proximate to the 6-month benchmark.  At that examination there was no evidence of social impairment.  The VA examiner noted that the CI was not taking any medications, and she was able to establish and maintain effective work/school and social relationships.  Occupational impairment was indeterminate at 9 months post separation because she was not working.  However, her work performance 9 months earlier when she was on active duty is still probative for determining a constructive occupational impairment at the 6-month benchmark.  While on active duty, she worked standard hours (full day), and her commander said her duty performance was satisfactory (performing only administrative duties).  At the VA examination, the examiner said that “the effect the symptoms have upon total daily functioning is fair” which, in the minority voter’s opinion, would be consistent with her occupational performance while on active duty.  She was not on any medication, and was not receiving medical treatment.  The examiner assigned a Global Assessment of Functioning (GAF) of 68, which is in the mild symptoms range (GAF 61-70), but closer to slight impairment (GAF > 71).  

Given this evidence, the minority voter believes the disability picture at the time of 6 months post-separation more nearly approximates the VASRD 10% rating for occupational and social impairment due to mild or transient symptoms which decrease work efficiency and ability to perform occupational tasks only during periods of significant stress.  The 30% disability rating requires evidence of occupational and social impairment with occasional decrease in work efficiency and was not supported by the evidence cited above.

In the matter of the major depressive disorder, the minority voter recommends 50% TDRL for 6 months, then permanent disability rating of 10% coded 9434.

AR20170005166, XXXXXXXXXXXXXXXXXXXXX

Dear XXXXXXXXXXXXXXXXXXXXX:

	The Department of Defense Physical Disability Board of Review (DoD PDBR) reviewed your application and recommended to constructively place you on the Temporary Disability Retired List (TDRL) at 50% disability for six months and then following this six month period re-characterize your separation as a disability retirement with the combined disability rating of 30%.  I have reviewed the Board’s record of proceedings, majority recommendation, and minority opinion (copy enclosed).  I regret to inform you that I reject the Board’s majority recommendation and accept the Board’s minority opinion to place you on the TDRL at 50% and then following this six month period no re-characterization of your separation or modification of the permanent disability rating of 10%.  Enclosed is a copy of the Board’s recommendation and record of proceedings for your information.  There is insufficient justification to support the Board’s recommendation in accordance with Army and Department of Defense regulations.

	The constructive TDRL period will result in an adjustment to your pay providing you 50% retired pay for six months from the date of your original medical separation and then no re-characterization of your separation or modification of the permanent disability rating of 10% following the constructive six month TDRL period. 

This decision is final.  Recourse within the Department of Defense or the Department of the Army is exhausted; however, you have the option to seek relief by filing suit in a court of appropriate jurisdiction. 

	The accepted DoD PDBR recommendation has been forwarded to the 
Army Physical Disability Agency for required correction of records and then to the 
U.S. Defense Finance and Accounting Service to make the necessary adjustment to your pay and allowances.  These agencies will provide you with official notification by mail as soon as the directed corrections have been made.  Due to the large number of cases in process, please be advised that it may be several months before you receive notification that the corrections are completed and pay adjusted.  Inquiry concerning your correction of records should be addressed to the U.S. Army Physical Disability Agency, (AHRC-DO), 2900 Crystal Drive, Suite 300, Arlington, VA  22202-3557.

	A copy of this decision has also been provided to the Department of Veterans Affairs.

Sincerely,

Enclosure